A place for a tired old woman to try to figure things out so that the world makes a bit of sense.

Friday, January 13, 2012

Gaming The System

We are seeing the impact of the Supreme Court's decision in Citizens United play out in the GOP campaigns for the presidential nomination, as the voters in Iowa, New Hampshire, and now South Carolina have discovered. The airwaves are filled with commercials purchased not just by the candidates but by Super PACS not directly affiliated with the campaigns. Those spots not only extol one candidate, but attack the others, and while it is fairly obvious who the beneficiary of each ad is, that beneficiary gets to distance himself from the more egregious attacks by noting that it didn't come from his campaign.

One of hallmarks of this new part of electioneering is that most of the time, voters have no idea who actually is behind each ad. The donors supplying the cash for the commercial buys are not listed in the commercial as it takes up viewing space, and that makes the whole process opaque, something that Sheila Krumholz, the executive director of the Center for Responsive Politics, notes in a column she produced for the New York Times.

...the money the candidates raise themselves is only part of the story, and it may not be the most significant part, even with the possibility that the nominees of both parties will forgo public financing for the general election, as President Obama did last time. Every major presidential candidate is being aided by a group now known as a “super PAC” and sometimes by more than one.

Triggered by the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission and a couple of lower court decisions, these new groups are allowed to collect unlimited sums of money from individuals, corporations, unions and trade groups — and to use these funds for expenditures that expressly call for the election or defeat of a candidate for federal office.

Not content with just pouring unlimited amounts of money into campaigns, these Super PACs are finding ways around the reporting requirements to keep the names of donors hidden from voters right before the election, something which the Supreme Court clearly did not intend in its decision. Because the Federal Election Commission hasn't actually caught up with the fallout from the decision, Super PACs are playing games with the system as it currently exists:

...Because 2011 was not an election year, super PACs that opted to file quarterly were not required to submit third-quarter disclosures that would have enlightened the public about their funders. However, the 1970s-era Federal Election Campaign Act does require quarterly filers to make special reports just before primaries. So as 2011 came to a close, many super PACs – including all of the candidate-specific ones – told the F.E.C that from now on they’d be filing monthly, rather than quarterly.

Monthly filers aren’t required to make “pre-primary” reports. So the funders behind the groups’ activities in the electoral contests in Iowa, New Hampshire, South Carolina and Florida won’t be known until after the voting is all over. Three super PACs — Our Destiny, which supports Jon Huntsman; the Red, White and Blue Fund, which is backing Rick Santorum; and Endorse Liberty, a booster of Ron Paul — even made this change after the books had closed on the pre-election reporting period. [Emphasis added]

How convenient.

In other words, unless the FEC changes the rules midstream and quickly, the result of Citizen's United is an increase in opacity. Voters, for whom knowing the identity of key backers might make a difference (i.e., knowing just whom the candidates now owe favors to), are going into the voting booths blind. And unless Congress moves to defang this terrible Supreme Court decision, the fallout will continue through November.